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On March 9, the U.S. Court of Appeals for the Fourth Circuit issued a ruling affirming the District Court’s rejection of Virginia common law property damage claims based largely on negligence, nuisance, trespass, and argument that   the Comprehensive Environmental Response, Compensation, and Liability Act , 42 U.S.C. §§ 9601 et seq. (CERCLA),  statute of limitations preempts the application of the Virginia’s five-year statute of limitations. The case is Blankenship v. Consolidation Coal company, et al. Relying on First United Methodist Church of Hyattsville v. U.S. Gypsum Co., the District Court rejected the Blankenships’ argument that Virginia’s statutes of limitations was been preempted by CERCLA, which provides a discovery rule in some circumstances for when state statutes of limitations begin to run and, alternatively, the District Court concluded that, even if CERCLA preempted the Virginia statute, the CERCLA discovery rule would not aid the Blankenships because “they reasonably should have known about their claims more than five years before they filed their actions.”

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On March 7, the U.S. District Court for the District of Columbia issued a ruling denying a motion for a preliminary dakota-access-300x173injunction filed by the Cheyenne River Sioux Tribe challenging an easement granted on February 8 by the U.S. Army Corps of Engineers to Dakota Access, LLC, the owners and operators of the Dakota Access Pipeline. It argued that the presence of oil in a pipeline constructed beneath Lake Oahe, a “federally regulated waterway that forms part of the Missouri River and straddles North and South Dakota,” will cause irreparable harm to its members’ religious beliefs in violation of the Religious Freedom Exercise Act (RFRA). According to the District Court, at the start of 2017, the Lake Oahe crossing is the only portion of the pipeline that is not finished. The case is Standing Rock Sioux Tribe and Cheyenne River Sioux Tribe v. U.S. Army Corps of Engineers.

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In FERC Enters the Trump Era, The agency announces staff-led Technical Conference as Trump administration expected to name new Commissioners, my colleagues Jeff Merrifield, Sheila McCafferty Harvey, Jeff Delaney and I discuss the Federal Energy Regulatory Commission’s much-anticipated announcement that occurred on March 3 regarding its upcoming staff-led technical conference on wholesale energy and capacity markets.

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In Great Expectations,  DOJ holds anti-corruption compliance programs to a high standard in evaluating their credibility, our colleagues Bill Sullivan, Nancy Fischer and Aaron Hutman discuss the U.S. Department of Justice’s (DOJ) February 8 release of a list of important topics and sample questions that the Criminal Division’s Fraud Section has frequently found relevant in evaluating the adequacy of a corporate compliance program. The new guidance is intended to assist ethics and compliance officers in crafting effective corporate compliance policies and procedures, and signals how DOJ’s new compliance expert, Hui Chen, is expected to assess a company’s compliance program.

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In Board of Commissioners of the Southeast Louisiana Flood Protection Authority – East, et al., v. Tennessee Gas Pipeline Company, L.L.C., et al., the U.S. Court of Appeals for the Fifth Circuit issued a unanimous ruling affirming the District Court’s decision to: (a) reject the Board of Commissioners of the Southeast Louisiana Flood Protection Authority–East’s (Board) motion to remand this cost recovery and injunctive action to the state courts of Louisiana; and (b) dismiss the complaint alleging claims against 97 oil and gas companies in connection with their oil and gas operations and activities off the Gulf Coast for any years for failure to state a claim.

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In U.S. v. Brownstein, the U.S. Court of Appeals for the DC Circuit, reversing the District Court, held that a federal law regulating conduct in the Supreme Court Building, 40 U.S.C. § 6134, which prohibits “harangues and orations” during oral argument, is constitutionally infirm.  On April 1, 2015, the defendants interrupted oral argument to announce their displeasure for the Supreme Court’s ruling in the Citizens United v. Federal Election Commission, a political speech case.  Noting that the defendants had fair notice of the rules governing conduct in this area, the DC Circuit, citing the movie “My Cousin Vinny,” concluded that a” person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior.”

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In the case of Defenders of Wildlife. et al., v. Zinke., et al., the U.S. Court of Appeals for the DC Circuit reversed the U.S. Gray-Wolf-300x210District Court for the District of Columbia, and reinstated the U.S. Department of the Interior’s  2012 decision to delist the Wyoming Gray Wolf, which had been listed as an endangered species under the Endangered Species Act (ESA) in 1973. The District Court vacated the rule, holding that the Fish and Wildlife Service’s determination that that the State of Wyoming had put in place adequate regulatory mechanisms in the conservation management plan of the State of Wyoming (Wyoming Management Plan) to protect the wolf was arbitrary.

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In Government of the Province of Manitoba v. Zinke, the U.S. Court of Appeals for the DC Circuit reversed the U.S. District Court for the District of Columbia and held that the State of North Dakota could begin designing a water treatment plant for an area of North Dakota whose public drinking water quality has been substandard for a long time. The project is known as the Northwest Area Water Supply Project. The District Court had rejected the State’s request to modify an injunction that kept the project from moving forward. Reviewing the District Court’s ruling, the DC Circuit has held that the District Court abused its discretion in not accepting North Dakota’s argument that a significant change in circumstances warranted this relief.

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In Energy Storage: Finding New Home with FERC Policy Statement and Notice of Proposed Rulemaking, my colleagues Michael Hindus, Kevin Ashe and I discuss the Federal Regulatory Agency Commission’s (FERC) November 2016 notice of proposed rulemaking (NOPR), January 19 policy statement confirming that electric storage resources may be able to recover both cost-based and market-based rates, and market participates’ comments on the FERC’s NOPR. Market participants seeking to bring storage resources to the wholesale electricity marketplace are encouraged to consider the implications of these recent efforts to incorporate electric storage on a wider scale.

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Earlier today, we published our client alert Trump Administration Seeks to Limit Coverage of Clean Water Act, Executive order to set out a new definition of “Waters of the United States” discussing a February 28, 2017 executive order directing that the Waters of the United States Rule (commonly referred to as the WOTUS Rule) be reviewed and revised or repealed. Although the executive order starts the process, its completion is expected to take at least a year or two given the formal administrative process required for repeal or replacement. In 2016, the WOTUS rule was stayed by the Sixth Circuit Court of Appeals pending further action. The repeal will be significant for project developers, such as solar projects and real estate developers, as well as for farmers and ranchers, mining companies and other energy companies. More administrative actions are expected given the aggressive approach by the Trump Administration to roll back the Obama Administration’s regulation on this issue.

Additional Source:  Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule; Construction Industry to See Greater Federal Footprint in Projects with New “Waters of the United States” Rule